# Smt. Jamila Khatoon by L.Rs v. Sri Ram Niwas Gupta

- **Citation:** (2015) 3 ILRA 1281
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-11-06
- **Case number:** Civil Misc. Impleadment Application No. 88868 of 2003
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-jamila-khatoon-by-l-rs-v-sri-ram-niwas-gupta-43308
- **Pages:** 11

## Headnote

Sri Ratnakar Bharti, Sri A.P.Srivastava, Sri
Avinash Pandey, Sri Ksitij Shailendra, Sri
Murlidhar, Sri P.M. Saxena, Sri P.N.Saxena,
Sri P.P. Srivastava, Sri Pradeep Kumar, Sri
Ran Vijai Bharti, Sri Ran Vijay, Sri Ratnakar,
Sri Ravi Kant, Sri S.K.Jauhary, Sri Sunil
Kumar Srivastava and Sri Virendra Kumar
Transfer of Property Act-Section 52-doctrine
of 'Lis Pendens'-suit for specific performanceapplicability-whether subsequent transferee
are necessary party?-held-'No' but proper
party-to avoid collusion with others sidehaving no interest-may not contest the suit
properly-hence
are
proper
partyimpleadment can not be rejected without
proper consideration.
Held: Para-36 & 37

## Text

3 All]
 Smt. Jamila Khatoon by L.Rs. Vs. Sri Ram Niwas Gupta
1281
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2015
BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Civil Misc. Impleadment Application No.
88868 of 2003
and Objection to the order of the Court
below dated 08.05.2003
In First Appeal No. 486 of 1980
Smt. Jamila Khatoon by L.Rs. ...Appellant
Versus
Sri Ram Niwas Gupta
...Respondent
Counsel for the Appellant:
Sri H.S.Nigam, Sri Chetan Chatterjee , Sri
Ram Niwas Singh , Sri S.S. Nigam , Suman
Jaiswal , Sri V.P.Varshney and Sri Vinay
Kr.Singh Chandel
Counsel for the Respondent:
Sri Ratnakar Bharti, Sri A.P.Srivastava, Sri
Avinash Pandey, Sri Ksitij Shailendra, Sri
Murlidhar, Sri P.M. Saxena, Sri P.N.Saxena,
Sri P.P. Srivastava, Sri Pradeep Kumar, Sri
Ran Vijai Bharti, Sri Ran Vijay, Sri Ratnakar,
Sri Ravi Kant, Sri S.K.Jauhary, Sri Sunil
Kumar Srivastava and Sri Virendra Kumar
Transfer of Property Act-Section 52-doctrine
of 'Lis Pendens'-suit for specific performanceapplicability-whether subsequent transferee
are necessary party?-held-'No' but proper
party-to avoid collusion with others sidehaving no interest-may not contest the suit
properly-hence
are
proper
partyimpleadment can not be rejected without
proper consideration.
Held: Para-36 & 37
36.
What emerge from the aforesaid
decisions of the Supreme Court are: (i) a
subsequent purchaser is a necessary and
proper party; (ii) after sale, the owner can
lose interest in litigation, thus it can
adversely affect the right of the subsequent
purchaser; (iii) Section 52 of the Transfer of
Property Act does not prohibit the bonafide
transfer of the property, it only puts a rider
that the subsequent purchaser shall abide
the result of the suit; and, (iv) the Court has
to be prima facie satisfied while exercising
its discretion to allow the application, and
the other aspects can be considered at the
time of hearing.
37. In view of the above principles, I am
of the view that the trial Court without
considering the law on the subject has
summarily rejected the application of the
applicants for impleadment without due
application of mind.
Case Law discussed:
AIR 1987 SC 2328; JT 1997 (2) SC 375; AIR
2001 SC 2783; 2001 (Suppl.) R.D. 342; JT
2005 (5) SC 20; (2013) 5 SCC 397; 1994 AWC
848; AIR 1997 SC 3720; 2003 (Suppl.) RD
686; (2012) 8 SCC 384; 2014 (122) RD 395;
(1973) 1 SCC 179: AIR 1973 SC 655; AIR 1954
SC 75:1954 SCR 360; AIR 1931 Cal 67; (1846)
6 Hare 1 :67 ER 1057: (1970) 3 SCC 140:AIR
1971 SC 1238; AIR 1954 SC 75:1954 SCR 360;
(1973) 1 SCC 179:AIR 1973 SC 655.
(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)
1.
The
present
impleadment
application and the objection to the order
of the Court below dated 08th May, 2003
have been filed by the subsequent
purchasers of the property in dispute,
namely, Smt. Seema Makkar, Smt. Geeta
Goel, Smt. Laxmi Devi and Smt. Poonam,
who are hereinafter referred to as the
"applicants".
2. Heard Sri V.P. Varshney and Ms.
Suman Jaiswal, learned counsel for the
applicants in support of the aforesaid
impleadment
application
and
the
objection filed by the applicants, and Sri
A.P.
Srivastava,
learned
counsel
appearing for the plaintiff-respondent.
1282
 INDIAN LAW REPORTS ALLAHABAD SERIES
3. The essential facts, insofar as they
are relevant for the purpose of the present
impleadment application and objection,
are that the plaintiff-respondent instituted
an original suit in the Court of the Civil
Judge,
Saharanpur
for
specific
performance of an agreement to sell dated
10th January, 1975. The said suit was
registered as Original Suit No. 123 of
1978 (Sri Ram Niwas Gupta v. Smt.
Jamila Khatoon). The defendant-appellant
Smt. Jamila Khatoon, since deceased, was
owner of the property in dispute, being
Khasra No. 163, admeasuring about 825
square yard, situated at Pathanpura,
Ahmad Bag, Saharanpur. The plaintiffrespondent's case was that an agreement
to sell was executed on 10th January,
1975 by the defendant-appellant Smt.
Jamila Khatoon in favour of the plaintiffrespondent to sell the aforesaid plot in
dispute
for
a
sale-consideration
of
Rs.31,350/-. Apart from the plaintiff, his
four cousins Rajendra Kumar, Chandra
Prakash, Devendra Kumar and Suresh
Chandra
were
also
shown
to
be
beneficiaries of the said agreement. The
plaintiff-respondent had advanced a sum
of Rs.5000/- to the defendant-appellant.
When the sale-deed was not executed in
terms of the said agreement, the plaintiffrespondent
instituted
the
abovementioned suit, which came to be decreed
vide judgment and decree dated 06th
August, 1980 by the Ist Additional
District & Sessions Judge, Saharanpur1.
4. Aggrieved by the judgment and
decree of the Court below, the defendantJamila Khatoon filed the instant first
appeal, i.e. First Appeal No. 486 of
19802, before this Court.
5. During the pendency of the first
appeal, defendant Jamila Khatoon died
and was substituted by her heirs and legal
representatives.
6. The first appeal was allowed by
this Court vide judgment and order dated
09th September, 1997, whereby the
judgment and decree of the Court below
was
set
aside,
suit
for
specific
performance
was
dismissed
and
a
direction was issued to the defendant to
refund the earnest money of Rs.5000/- to
the plaintiff with interest @ 9% per
annum.
7. Dissatisfied with the judgment of
this Court dated 09th September, 1997,
the plaintiff-respondent approached the
Supreme Court by filing Civil Appeal No.
2246 of 1998, Ram Niwas Gupta v.
Mumtaz Hasan and others. The Supreme
Court was satisfied that there was a long
unexplained delay in filing the suit and
the said issue was not adverted to by the
High Court. Therefore, the Supreme
Court vide its order dated 16th January,
2002 allowed the civil appeal, set aside
the judgment and order of the High Court
and after framing two issues, remitted the
matter to the High Court to decide afresh.
The direction of the Supreme Court is
extracted herein-below:
"Then the question arises what is the
relief which can appropriately be granted
to the appellant in this appeal. It is our
considered view that the High Court
should frame an issue whether there has
been unexplained delay on the part of the
plaintiff in taking recourse to law in filing
suit (though it is filed within the
prescribed period of limitation) and
whether on facts and in the circumstances
of the case such delay defeats the relief of
specific performance of the contract for
sale of the suit property and call for the
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 Smt. Jamila Khatoon by L.Rs. Vs. Sri Ram Niwas Gupta
1283
finding of the trial court on the issue and
on receipt of the same decide the first
appeal afresh after giving opportunity of
hearing to the parties. It goes without
saying that the trial court will give
opportunity to the parties to adduce
further evidence in the case on the newly
framed issue and record its finding on the
question.
Accordingly the appeal is allowed,
the judgment of the High Court which is
under challenge is set aside and the matter
is remanded to the High Court for
disposal on the terms afore-stated. No
costs."
8. In compliance with the judgment
of the Supreme Court, this Court on 24th
April, 2002 remitted the two issues, as
framed by the Supreme Court, to the
Court below to return the findings
thereon.
9. In the meantime, the legal heirs of
Jamila Khatoon and four cousins of plaintiffrespondent, who are beneficiaries of the
agreement to sell and who claimed to have
4/5 share in the property in dispute, executed
a sale-deed dated 27th March, 2003 for a
sale-consideration
of
Rs.12,00,000/-
in
favour of the applicants i.e. Smt. Seema
Makkar, Smt. Geeta Goel, Smt. Laxmi Devi
and Smt. Poonam, in respect of a major
portion of the property in dispute and also
executed another sale-deed dated 27th
March, 2003 for the remaining part of the
property in dispute in favour of some other
person. The photocopies of the sale-deeds are
on the record.
10. From the record it transpires that
after transferring the property in dispute
in favour of Smt. Seema Makkar and
others, the applicants, the heirs of late
Smt. Jamila Khatoon did not participate in
the proceedings, therefore, the Court
below vide order dated 02nd April, 2003
passed an order to proceed exparte against
them. On 07th April, 2003 the vendees
Smt. Seema Makkar and three others, the
applicants, filed an application before the
trial Court seeking their impleadment in
the suit and for recalling the order dated
02nd April, 2003. The said application of
the applicants was rejected by the trial
Court vide its order dated 23rd April,
2003.
11. Against the aforesaid order of
the Court below dated 23rd April, 2003,
the applicants preferred First Appeal
From Order No. 1286 of 2003 (Smt.
Seema Makkar and others v. Sri Ram
Niwas Gupta and others), which is
pending before this Court and is listed
with the present first appeal for hearing.
12. On 08th May, 2003 the trial
Court vide an exparte order returned its
finding on the two issues which were
framed by this Court and were remitted to
it for recording the findings.
13. It is against this background that
the applicants have filed the present
impleadment
application
for
being
impleaded as appellants in the first appeal
and have also filed an objection to the
aforesaid order of the trial Court dated
08th May, 2003, whereby the trial Court
has returned its findings on two issues.
14.
At the time of hearing, learned
counsel appearing for both the parties in their
submissions admitted that in view of the fact
that the trial Court has returned the findings
on the two issues on 08th May, 2003, the
First Appeal From Order No. 1286 of 2003
filed by the applicants against the order dated
23rd April, 2003 has become infructuous. It
1284
 INDIAN LAW REPORTS ALLAHABAD SERIES
is relevant to note that as the applicants have
filed the present impleadment application
and the objection against the findings
recorded by the trial Court on the two issues,
therefore, learned counsel for the parties have
addressed this Court in the first appeal.
15. The Court below has rejected the
impleadment application of the applicants
primarily on the ground that the legal
heirs of the defendant-appellant have
executed
the
sale-deed
during
the
pendency of the appeal, therefore, it was
hit by the provisions of Section 52 of the
Transfer of Property Act.
16. Sri V.P. Varshney and Ms.
Suman Jaiswal, learned counsel for the
applicants, submit that the applicants were
assured by the legal heirs of the
defendant-appellant
that
they
would
contest the pending legal proceedings,
however, subsequently the applicants
realized
that
after
transferring
the
property in dispute in favour of the
applicants and others, the heirs of late
Smt. Jamila Khatoon lost interest and they
did not participate in the proceedings. The
trial Court vide its order dated 02nd April,
2003 passed an order to proceed with the
matter exparte against them. Immediately
thereafter, on 07th April, 2003 the
applicants moved an application before
the trial Court seeking their impleadment
in the suit and for recalling the order
dated 02nd April, 2003 to proceed
exparte, but the said application of the
applicants have been rejected by the trial
Court vide order dated 23rd April, 2003.
17.
They further urged that on 05th
July, 2002 Dr. Mumtaz Hasan, legal heir and
power of attorney holder of Jamila Khatoon,
had appeared before the trial Court and had
moved an application for amendment in the
case and thereafter he abstained from
appearing in the trial Court. In view of the
said facts, the applicants were necessary
party to protect their interest as they are the
bonafide purchasers for a valuable sale
consideration. In fact, the applicants had no
knowledge earlier about the pendency of the
litigation. In their application under Order
XXII Rule 10 C.P.C. moved before the trial
Court it was stated that all the legal heirs of
late Jamila Khatoon had assured the
applicants that they will contest the suit.
However, on 05th April, 2003 when they
enquired from Imtiyaz Ali, he did not have
any knowledge about the case. However, the
enquiry made by the applicants revealed that
the Court below has already passed an order
on 02nd April, 2003 to proceed exparte and
has closed the evidence of the plaintiffrespondent and has fixed 04th April, 2003 as
the next date. On 04th April, 2003 the
plaintiff had filed the affidavits of his two
witnesses. Thus, without any loss of time, the
applicants had moved an application for their
impleadment, which has been rejected by the
Court below.
18. It is further urged by the learned
counsel for the applicants that a transferee
pendente lite of an interest in an
immovable property is a representative in
interest of the party, from whom he had
acquired that interest, and he is entitled to
be impleaded in the suit or other
proceedings and he is entitled to be heard
in the matter on the merits of the case. In
case he is not heard, there will be no one
to prosecute the suit on account of the
owner having left with no interest in the
property.
19. In support of their submissions,
learned counsel for the applicants have
placed reliance on the judgments of the
Supreme Court in the cases of Parakunnan
3 All]
 Smt. Jamila Khatoon by L.Rs. Vs. Sri Ram Niwas Gupta
1285
Veetill
Joseph's
Son
Mathew
v.
Nedumbara Kuruvila's Son and others3,
K.S. Vidyanadam & ors. v. Vairavan4,
A.C. Arulappan v. Smt. Ahalya Naik5,
Dhurandhar Prasad Singh v. Jai Prakash
University and others6, Amit
Kumar
Shaw and anr. v. Farida Khatoon and
anr.7, and, Thomson Press (India) Limited
v. Nanak Builders and Investors Private
Limited and others8, and of this Court in
Lal Chandra and others v. District Judge,
Jaunpur and others9.
20. Learned counsel for the respondent
has submitted that the applicants have no
right to interfere in the proceedings of the
first appeal. Since they are not parties to the
contract, they are not necessary party or
proper party to the litigation. It was urged
that the agreement to sell is an executory
contract, whereas sale is an executed
contract. The trial Court has rightly rejected
their application as they have no right in the
suit property and the sale-deed dated 27th
March, 2003 having been executed by
incompetent persons is a nullity in the eyes
of law and void ab-initio. It was further
submitted that by implication of doctrine of
lis pendens the transferee cannot deprive the
successful plaintiff of the fruit of the decree.
It was urged that alienation will in no manner
affect the right of the other party under any
decree which may be passed in the suit
unless the property was alienated with the
permission of the Court.
21. Learned counsel for the
respondent has placed reliance on the
judgments of the Supreme Court in the
cases of Dhanna Singh and others v.
Baljinder Kaur and others10, Rambhau
Namdeo Gajre v. Narayan Bapuji Dhotra
(Dead) through L.Rs.11, Vidur Impex and
Traders Private Limited and others v.
Tosh Apartments Private Limited and
others12, and, K.N. Aswathnarayana
Setty (D) through L.Rs. and others v.
State of Karnataka and others13.
22. I have considered the rival
submissions advanced by the learned
counsel for the parties and perused the
record.
23. The plaintiff-respondent's suit
for specific performance was decreed by
the trial Court on 06th August, 1980,
against which the defendant-appellant late
Smt. Jamila Khatoon filed the present first
appeal before this Court. The first appeal
of the defendant was allowed by this
Court 09th September, 1997 and the
judgment and decree of the trial Court
was set aside. Aggrieved by the said order
of this Court, the plaintiff filed a civil
appeal before the Supreme Court. The
Supreme Court on 16th January, 2002 set
aside the order of the High Court and
remanded the matter to the High Court to
decide afresh. In its order, the Supreme
Court has directed the High Court to
frame fresh issues to the effect whether
there has been unexplained delay on the
part of the plaintiff in taking recourse to
law in filing the suit and whether on facts
of the case the delay defeats the relief of
specific performance of the contract for
sale of the suit property. The Supreme
Court has also directed that the trial Court
will give opportunity to the parties to
adduce further evidence in the case on the
newly framed issues and record its
findings on the aforesaid questions.
24. In compliance with the aforesaid
order of the Supreme Court, the High
Court on 24th April, 2002 has framed two
specific issues and remanded the matter to
the trial Court to return the findings
thereon.
1286
 INDIAN LAW REPORTS ALLAHABAD SERIES
25. After the matter was remanded
by the Supreme Court, a major portion of
the suit property was transferred in favour
of the applicants by a registered sale-deed
dated 27th March, 2003. In the said saledeed, four cousins of the plaintiff had also
joined.
26. From the record it emerges that
after alienating the property in dispute,
the erstwhile owner of the property lost
interest in the suit property and they
stopped attending the case which led the
trial Court to proceed exparte on 02nd
April, 2003. Thereafter, the applicants
within a week i.e. on 07th April, 2003 had
moved an application to recall the order
dated 02nd April, 2003 and also for their
impleadment
in
the
case.
Their
application was rejected by the trial Court
vide order dated 23rd April, 2003 on the
ground that the sale-deed was barred by
the provisions of Section 52 of the
Transfer of Property Act. Thereafter, the
Court below vide order dated 08th May,
2003 in an exparte manner proceeded to
record the findings on the issues remitted
by this Court.
27. In Thomson Press (India)
Limited (supra) the Supreme Court has
considered the same issue. The learned
counsel for the applicants has heavily
relied on this judgment. The said case has
a chequered history, therefore, brief facts
of the case are necessary for proper
appreciation of the law laid down in the
case. In the said case, one Mrs. Lakhbir
Sawhney and her son14 were owner of a
building
known
as
"Ojha
House"/
"Sawhney Mansion", F-Block, Connaught
Place, New Delhi. One M/s. Nanak
Builders and Investors (P) Ltd. filed a suit
in the High Court of Delhi against
Sawhneys for a decree for specific
performance of agreement dated 29th
May, 1980. It was their case that the
owners of the property-defendants had
entered into an agreement with the
plaintiff for the sale of first floor of the
said property on a consideration of Rs.50
lakhs, out of which Rs.1 Lakh was paid
by the plaintiff to the defendants.
28. The said property was in the
tenancy of M/s. Peerless General Finance
Company Ltd. In 1991, M/s. Peerless
General Finance Company Ltd. vacated
the premises. Immediately after the
premises was vacated, the plaintiff
requested the owners to receive the
balance consideration but the same was
avoided by the owners. The plaintiff
thereafter got published a public notice in
the newspapers The Hindustan Times,
New Delhi, so that the defendantsowners/Sawhneys do not sell, transfer or
alienate the property to any other person.
29. In the meantime, one Living
Media India Ltd. (LMI), a group company
of M/s. Thomson Press (India) Ltd.,
offered the owners to take the suit
property on lease and they had paid
earnest money in respect of the said lease.
The owners of the property-Sawhneys
when resiled from the agreed terms with
LMI, the LMI filed a suit against
Sawhneys in the High Court of Delhi for
perpetual
injunction
restraining
the
Sawhneys
from
transferring
the
possession of the property to any third
party and an interim order was granted by
the High Court on 19th September, 1990
in respect of the suit property. In the said
suit, a compromise was arrived at
between
LMI
and
Sawhneys
and
consequently the suit property was leased
out by the defendants-Sawhneys in favour
of the LMI.
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 Smt. Jamila Khatoon by L.Rs. Vs. Sri Ram Niwas Gupta
1287
30. Sawhneys had taken a loan from
a bank and an equitable mortgage was
created in respect of the suit property. The
bank had filed a suit in 1977 in the High
Court
of
Delhi
for
recovery
and
redemption of the mortgaged property.
The said suit was decreed on 14th
October, 1998 and recovery certificate
was issued by the Debts Recovery
Tribunal (DRT). The LMI moved an
impleadment application and settled the
decree by agreeing to deposit the loan
amount of Rs.1.48 crores and the LMI
cleared all the dues of Sawhneys for sale
of
the
property
in
their
favour.
Consequently,
five
sale-deeds
were
executed by Sawhneys in favour of M/s.
Thomson Press India Limited, a group of
LMI. On the basis of those sale-deeds,
M/s.
Thomson
Press
moved
an
application under Order I Rule 10 CPC
for impleadment as defendants in the suit
for specific performance filed by M/s.
Nanak Builders and Investors (P) Ltd..
31. The High Court of Delhi dismissed
the application of Thomson Press on the
ground that since there was an injunction
order passed way back on 04th November,
1991 in the suit for specific performance
restraining Sawhneys from transferring or
alienating the suit property and since the
appellants have purchased the property in
violation of the undertaking given by
Sawhneys which was in the nature of
injunction, they were not proper party. The
view taken by the learned Single Judge of the
Delhi High Court was affirmed in appeal by
a Division Bench of the Delhi High Court.
Aggrieved by the said orders, the Thomson
Press approached the Supreme Court.
32. Before the Supreme Court, in the
said case, a submission was made on
behalf of the purchaser/the appellant
therein that the appellant being purchaser of
the suit property is a necessary and proper
party for complete and effective adjudication
of the suit. Rejection of the impleadment
application of the subsequent purchaser was
contrary to the principles governing Order I
Rule 10(2) CPC. It was also urged that where
a subsequent purchaser has purchased a suit
property and is deriving its title through the
same vendor then he would be a necessary
party provided it has purchased with or
without notice of the prior contract. It was
also urged before the Supreme Court that
Section 52 of the Transfer of Property Act
does not prohibit the subsequent transaction
of transfer of property nor even declares the
same to be null and void.
33. The Supreme Court held that a
decree for specific performance may be
enforced against a person who claimed
under the defendant, and title acquired
subsequent to the contract. Such a sale or
transfer is subject to the rider provided
under Section 52 of the Transfer of
Property Act. In the said case, the
Supreme Court followed its earlier
decision in Dwarka Prasad Singh v.
Harikant Prasad Singh15. The Supreme
Court in paragraphs - 41 to 44 of the
judgment, held thus:
"41. The Supreme Court in Durga
Prasad v. Deep Chand16 referred to the
aforementioned decision of the Calcutta
High Court in Kafiladdin case17 and
finally held: (Durga Prasad case, AIR p.
81, para 42)
"42. In our opinion, the proper form
of decree is to direct specific performance
of the contract between the vendor and
the plaintiff and direct the subsequent
transferee to join in the conveyance so as
to pass on the title which resides in him to
the plaintiff. He does not join in any
1288
 INDIAN LAW REPORTS ALLAHABAD SERIES
special covenants made between the
plaintiff and his vendor; all he does is to
pass on his title to the plaintiff. This was
the course followed by the Calcutta High
Court in Kafiladdin v. Samiraddin, and
appears to be the English practice. (See
Fry on Specific Performance, 6th Edn., p.
90,
para
207
and
also
Potter
v.
Sanders18.) We direct accordingly."
42. Again in R.C. Chandiok v. Chuni
Lal Sabharwal19 this Court referred to
their earlier decision and observed: (SCC
p. 146, para 9)
"9. It is common ground that the plot
in dispute has been transferred by the
respondents and therefore the proper form
of the decree would be the same as
indicated at SCR p. 369 in Durga Prasad
v. Deep Chand20 viz.
'to direct specific performance of the
contract between the vendor and the
plaintiff
and
direct
the
subsequent
transferee to join in the conveyance so as
to pass on the title which resides in him to
the plaintiff. He does not join in any
special covenants made between the
plaintiff and his vendor; all he does is to
pass on his title to the plaintiff'. (AIR p.
81, para 42)
We order accordingly. The decree of
the courts below is hereby set aside and
the appeal is allowed with costs in this
Court and the High Court."
43. This Court again in Dwarka
Prasad Singh v. Harikant Prasad Singh21
subscribed to its earlier view and held that
in a suit for specific performance against
a person with notice of a prior agreement
of sale is a necessary party.
44. Having regard to the law
discussed hereinabove and in the facts and
circumstances of the case and also for the
ends of justice the appellant is to be added
as party-defendant in the suit. The appeal
is, accordingly, allowed and the impugned
orders passed by the High Court are set
aside."
34. The facts of Thomson Press
(India) Limited (supra) are somewhat
similar to the facts of the present case. In
Thomson Press (India) Limited (supra)
also, the property was purchased even
after the restraint order passed by the
High Court of Delhi. The Supreme Court
held that subsequent purchaser is a
necessary party.
35. In Amit Kumar Shaw (supra) the
Supreme Court held that the Court has a
discretion to make the subsequent purchaser
as a party, if his interest in the subject matter
of the suit is substantial and not just
peripheral. A subsequent purchaser who
acquires interest from the owner is vitally
interested in the litigation, whether the
transfer is of the entire interest, as in some
cases owner having no more interest in the
property may not properly defend the suit
and he may collude with the contesting party.
The Supreme Court has also considered the
scope of Order XXII Rule 10 CPC and held
that under the said provision there is no
detailed enquiry contemplated at the stage of
granting leave. The Court has only to be
prima facie satisfied for exercising its
discretion in granting leave. The question
about existence and validity of the transfer
can be considered at the final hearing of the
proceedings. At the initial stage, the only
requirement is prima facie satisfaction. The
Supreme Court held as under:
"16. The doctrine of lis pendens
applies only where the lis is pending
before a Court. Further pending the suit,
the transferee is not entitled as of right to
be made a party to the suit, though the
Court has a discretion to make him a
party. But the transferee pendente lite can
3 All]
 Smt. Jamila Khatoon by L.Rs. Vs. Sri Ram Niwas Gupta
1289
be added as a proper party if his interest
in the subject matter of the suit is
substantial and not just peripheral. A
transferee pendente lite to the extent he
has acquired interest from the defendant is
vitally interested in the litigation, whether
the transfer is of the entire interest of the
defendant; the latter having no more
interest in the property may not properly
defend the suit. He may collude with the
plaintiff. Hence, though the plaintiff is
under no obligation to make a lis pendens
transferee a party; under Order XXII Rule
10 an alienee pendente lite may be joined
as party. As already noticed, the Court has
discretion in the matter which must be
judicially exercised and an alienee would
ordinarily be joined as a party to enable
him to protect his interests. The Court has
held that a transferee pendente lite of an
interest in immovable property is a
representative-in-interest of the party
from whom he has acquired that interest.
He is entitled to be impleaded in the suit
or other proceedings where the transferee
pendente lite is made a party to the
litigation; he is entitled to be heard in the
matter on the merits of the case."
36. What emerge from the aforesaid
decisions of the Supreme Court are: (i) a
subsequent purchaser is a necessary and
proper party; (ii) after sale, the owner can
lose interest in litigation, thus it can
adversely
affect
the
right
of
the
subsequent purchaser; (iii) Section 52 of
the Transfer of Property Act does not
prohibit the bonafide transfer of the
property, it only puts a rider that the
subsequent purchaser shall abide the
result of the suit; and, (iv) the Court has to
be prima facie satisfied while exercising
its discretion to allow the application, and
the other aspects can be considered at the
time of hearing.
37. In view of the above principles, I
am of the view that the trial Court without
considering the law on the subject has
summarily rejected the application of the
applicants for impleadment without due
application of mind.
38. The finding of the trial Court that
the subsequent transfer was hit by Section 52
of the Transfer of Property Act, is contrary to
the law. Thus, the trial Court has
misconstrued the scope of Section 52 of the
Transfer of Property Act. The trial Court has
also failed to notice that the Supreme Court
has directed to decide the relevant issues
after hearing both the parties and after
permitting them to lead the evidence,
therefore, the trial Court was not justified in
passing the order to proceed with the suit
exparte on 02nd April, 2003. The application
of the applicants for their impleadment and
recall of the order dated 02nd April, 2003
was moved within five days i.e. 07th April,
2003.
39.
The proper course for the trial
Court was to recall the order dated 02nd
April, 2003, to allow the impleadment of the
applicants as party in the case, as in absence
of both the plaintiff as well as the applicants
the issues framed by the High Court could
not have been effectively adjudicated upon,
and thereafter to proceed to return the
findings after hearing both the sides. From
the plain reading of the issues framed by the
High Court, on the direction of the Supreme
Court, it is evident that the issues need proper
determination of fact with regard to the delay
in filing the suit. The said issues cannot be
determined without proper evidence by both
the sides.
40. Now I will deal with the
judgments cited by the learned counsel for
the respondent--the plaintiff.
1290
 INDIAN LAW REPORTS ALLAHABAD SERIES
41.
In the case of Vidur Impex and
Traders Private Limited (supra) M/s. Tosh
Apartments Private Limited filed a suit in the
High Court of Delhi. In the said case it was
found that the application for impleadment
filed by the subsequent purchasers lack
bonafide because they purchased the suit
property from the party despite the order of
injunction passed by the High Court and
there was no tangible explanation for filing
the application after a long time-gap of 7
years. The respondent therein could not
satisfy the Court about the long time-gap of 7
years and their knowledge about the
injunction order issued by the High Court.
Moreover, in their favour only an agreement
to sell and thereafter sale-deeds were
executed and the said sale-deeds were found
to be nullity as it was executed after the
injunction granted by the Delhi High Court.
In view of the said fact, the said case, as
relied upon by the respondent, has no
application in the present matter. In the case
of Rambhau Namdeo Gajre (supra) a suit
was filed for the possession of the suit land
on the allegation that the owner was
wrongfully dispossessed from it. The
plaintiff had alleged that he was owner of the
suit land, which was his self-acquired
property, and his brother has filed a suit for
partition and possession of the ancestral
property, the suit land along with other lands
was left to his share. The issue raised in the
said case was in respect of doctrine of part
performance enshrined under Section 53-A
of the Transfer of Property Act. The issue of
doctrine of part performance as contemplated
under Section 53-A of the Transfer of
Property Act is not involved in the present
case, therefore, the facts of the said case are
distinguishable.
42. In Dhanna Singh (supra) the
defendant had contested the case and
pending the suit several opportunities
were given but no evidence was adduced
by the defendant therein. The Court
thereafter passed an order foreclosing the
evidence of the defendant on the
statement of the counsel that the first
defendant was not willing to lead any
evidence. At that stage, the subsequent
purchaser moved an application for
adduction of evidence. In the facts of the
said case, the trial Court has rejected the
application. The facts of the said case
clearly show that several opportunities
were given to the defendant and a
statement was made that they will not
lead any evidence. In the present case, the
trial Court has passed an order to proceed
exparte on 02nd April, 2003 when owner
did not appear, but the application was
moved by the applicants within five days
which has been rejected. Thus, the said
case does not help the respondentplaintiff.
43. Insofar as K.N. Aswathnarayana
Setty (supra) is concerned, the said case
was in respect of a land of the Land
Acquisition Act, 1894. In the said case the
land was acquired under the provisions of
the Land Acquisition Act and the owner
had transferred the property after the
acquisition proceeding. The preliminary
notification under Section 4(1) of the
Land Acquisition Act was issued in
respect of a huge chunk of land
admeasuring 15 acres on 06th August,
1991 for the benefit of the State
Government
Houseless
Harijan
Employees Association (Regd.). On 15th
May, 1992 a declaration under Section 6
of the Land Acquisition Act was issued.
The Government denotified the land from
acquisition on 05th August, 1993 by
issuing notification under Section 48(1) of
the Land Acquisition Act. The decision of
the State Government to denotify the land
3 All] Kamla Prasad Chaurasia 7866(S/S) 2005 Vs. State of U.P. & Ors.
1291
was challenged by the beneficiaries and the
matter was carried upto the Supreme Court.
In the meantime, during pendency of the
civil appeal in the Supreme Court, the
property was transferred. In that context, the
Supreme Court held that at the time of
purchasing of the suit land by the petitioners,
the matter was subjudice before the Supreme
Court and if the order of denotification was
quashed, it would automatically revive the
land acquisition proceedings. In the said
facts, the Supreme Court applied the doctrine
of lis pendens and the Court held that the
transferee cannot deprive the successful
plaintiff of the fruits of the decree if he
purchased the property pendente lite. For the
said reason, the said case also does not come
to the aid of the respondent-plaintiff.
44. In view of the discussions made
above, I am of the considered view that
the order of the trial Court dated 23rd
April, 2003 rejecting the application of
the applicants for their impleadment and
recall of the order dated 02nd April, 2003
to proceed exparte is illegal and is liable
to be set aside. Accordingly, it is set
aside. The impleadment application filed
by the applicants before the trial Court
needs to be allowed and is allowed for
proper adjudication of the issues in the
interest of justice.
45. Consequently, the order dated
08th May, 2003 recording findings in
compliance with the order of this Court,
as directed by the Supreme Court, is
required to be set aside on account of the
same having been recorded exparte,
which is against the direction of the
Supreme Court given in the order dated
16th January, 2002 for giving opportunity
to the parties to lead the evidence. Hence,
the order dated 08th May, 2003 passed by
the trial Court is set aside. The matter is
remitted to the trial Court to give
opportunity to the applicants to lead the
evidence, if they desire so, and after
giving opportunity to both the parties, and
to return its findings on both the issues, as
framed
by
this
Court,
afresh,
expeditiously
preferably
within
four
months from the date of receipt of the
record.
46. Accordingly, the impleadment
application and the objection filed by the
applicants are allowed. No order as to
costs.
47. Let the lower court record be
sent to the concerned court. 3
48. List the appeal after receipt of
the findings of the trial Court along with
the record.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.11.2015
BEFORE
THE HON'BLE DINESH MAHESHWARI, J.
THE HON'BLE ANANT KUMAR, J.
Special Appeal No. 528 of 2015
Kamla Prasad Chaurasia 7866 (S/S)
2005
 ...Appellant
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Appellant:
Pradeep Shukla
Counsel for the Respondents:
C.S.C., Pramendra Kumar Singh, Ravi
Kishore Joshi
High Court Rules, 1956-Chapter VIII
Rules-5-Special
Appeal-Single
Judge
dismissed writ petition-finding that the